Re: Securities Purchase Agreement, dated as of September 9, 2008 (the “Purchase Agreement”), between Premier Power Renewable Energy, Inc., a Delaware corporation (the “Company”) and the purchasers signatory thereto (each, a “Purchaser” and,...
FORM
OF
LOCK-UP AGREEMENT
September
9, 2008
Each
Purchaser referenced below:
|
Re:
|
Securities
Purchase Agreement, dated as of September 9, 2008 (the “Purchase
Agreement”),
between Premier Power Renewable Energy, Inc., a Delaware corporation
(the
“Company”)
and the purchasers signatory thereto (each, a “Purchaser”
and, collectively, the “Purchasers”)
|
Ladies
and Gentlemen:
Defined
terms not otherwise defined in this letter agreement (the “Letter
Agreement”)
shall
have the meanings set forth in the Purchase Agreement. Pursuant to Section
2.2(a) of the Purchase Agreement and in satisfaction of a condition of the
Company’s obligations under the Purchase Agreement, the undersigned irrevocably
agrees with the Company that, from the date hereof until the earlier of (a)
the
12 month anniversary of the Effective Date and (b) the date that (i) the
Company’s Common Stock has a closing bid price of $4.00 or more for 20
consecutive Trading Days and an average daily trading volume during such same
period of at least 100,000 shares (such price and volume adjusted for any stock
splits and similar adjustments effected after the Closing Date) or (ii) the
Common Stock is listed on any tier of the Nasdaq Stock Market (such period,
the
“Restriction
Period”),
the
undersigned will not offer, sell, contract to sell, hypothecate, pledge or
otherwise dispose of (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned or any Affiliate of the undersigned or any person
in privity with the undersigned or any Affiliate of the undersigned), directly
or indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act with respect
to,
any shares of Common Stock or Common Stock Equivalents beneficially owned,
held
or hereafter acquired by the undersigned (the “Securities”).
Beneficial
ownership shall be calculated in accordance with Section 13(d) of the Exchange
Act. In order to enforce this covenant, the Company shall impose irrevocable
stop-transfer instructions preventing the Transfer Agent from effecting any
actions in violation of this Letter Agreement.
Each
of
the undersigned, severally and not jointly with the other signatories hereto,
covenants that neither it, nor any Affiliate acting on its behalf or pursuant
to
any understanding with it, will execute any Short Sales during the period
commencing with the execution of this letter and ending the earlier of (i)
one
year after the Effective Date or (ii) 18 months after the Closing
Date.
During
the Restriction Period, the undersigned “Insiders” shall be permitted to make
Transfers of the shares of the Common Stock held by the undersigned in an amount
up to 20% of the number of shares shown next to such “Insiders” signature below
so long as the closing
-
1 -
bid
price
on the Trading Day prior to such Transfer is at least $3.00 (adjusted for any
stock splits and similar adjustments effected after the Closing
Date).
Notwithstanding
anything to the contrary herein, during the Restriction Period, Genesis Capital
Advisors, LLC (“Genesis”) shall be permitted to make Transfers of the shares of
the Common Stock held by the undersigned in an amount up to 45% of the number
of
shares shown next to Genesis’ signature below so long as the closing bid price
on the Trading Day prior to such Transfer is at least $2.00 (adjusted for any
stock splits and similar adjustments effected after the Closing Date); provided
further, that Genesis shall not make any other Transfers at any price less
than
$3.00 per share prior to the earlier of 12 months following the Effective Date
or the listing of the Common Stock on any tier of the Nasdaq Stock
Market.
The
undersigned acknowledges that the execution, delivery and performance of this
Letter Agreement is a material inducement to each Purchaser to complete the
transactions contemplated by the Purchase Agreement and that each Purchaser
(which shall be a third party beneficiary of this Letter Agreement) and the
Company shall be entitled to specific performance of the undersigned’s
obligations hereunder. The undersigned hereby represents that the undersigned
has the power and authority to execute, deliver and perform this Letter
Agreement, that the undersigned has received adequate consideration therefor
and
that the undersigned will indirectly benefit from the closing of the
transactions contemplated by the Purchase Agreement.
This
Letter Agreement may not be amended or otherwise modified in any respect without
the written consent of each of the Company, each Purchaser and the undersigned.
This Letter Agreement shall be construed and enforced in accordance with the
laws of the State of New York without regard to the principles of conflict
of
laws. The undersigned hereby
irrevocably submits to the exclusive jurisdiction of the United States District
Court sitting in the Southern District of New York and the courts of the State
of New York located in Manhattan, for the purposes of any suit, action or
proceeding arising out of or relating to this Letter Agreement, and hereby
waives, and agrees not to assert in any such suit, action or proceeding, any
claim that (i) it is not personally subject to the jurisdiction of such court,
(ii) the suit, action or proceeding is brought in an inconvenient forum, or
(iii) the venue of the suit, action or proceeding is improper.
The
undersigned hereby irrevocably waives personal service of process and consents
to process being served in any such suit, action or proceeding by receiving
a
copy thereof sent to the Company at the address in effect for notices to it
under the Purchase Agreement and agrees that such service shall constitute
good
and sufficient service of process and notice thereof. The undersigned hereby
waives any right to a trial by jury. Nothing contained herein shall be deemed
to
limit in any way any right to serve process in any manner permitted by law.
The
undersigned agrees and understands that this Letter Agreement does not intend
to
create any relationship between the undersigned and each Purchaser and that
each
Purchaser is not entitled to cast any votes on the matters herein contemplated
and that no issuance or sale of the Securities is created or intended by virtue
of this Letter Agreement.
By
its
signature below, the Transfer Agent hereby acknowledges and agrees that,
reflecting this Letter Agreement, it has placed an irrevocable stop transfer
instruction on all Securities beneficially owned by the undersigned until the
end of the Restriction Period. This Letter Agreement shall be binding on
successors and assigns of the undersigned with respect to
-
2 -
the
Securities and any such successor or assign shall enter into a similar agreement
for the benefit of the Purchasers.
***
SIGNATURE PAGE FOLLOWS***
-
3 -
LETTER
AGREEMENT SIGNATURE PAGE
This
Letter Agreement may be executed in two or more counterparts, all of which
when
taken together may be considered one and the same agreement.
“Insiders”
XXXX
XXXXX
_________________________
Signature
Xxxx
Xxxxx
Print
Name
Chief
Executive Officer, President and Chairman of the Board
Position
in Company
Address
for Notice:
0000
Xxxxxxxx Xxxxx, Xxxxx 000
Xx
Xxxxxx
Xxxxx, XX 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
12,488,056
Number
of
shares of Common Stock
None
Number
of
shares of Common Stock underlying subject to warrants, options, debentures
or
other convertible securities
-
4 -
LETTER
AGREEMENT SIGNATURE PAGE
“Insiders”
(continued)
XXXXXX
DE ANQUIN
_________________________
Signature
Xxxxxx
de Anquin
Print
Name
Chief
Operating Officer, Director and Corporate Secretary
Position
in Company
Address
for Notice:
0000
Xxxxxxxx Xxxxx, Xxxxx 000
Xx
Xxxxxx
Xxxxx, XX 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
7,090,797
Number
of
shares of Common Stock
None
Number
of
shares of Common Stock underlying subject to warrants, options, debentures
or
other convertible securities
-
5 -
LETTER
AGREEMENT SIGNATURE PAGE
“Insiders”
(continued)
XXXXX
XXXXXXX
_________________________
Signature
Xxxxx
Xxxxxxx
Print
Name
President
of Premier Power, S.L.
Position
in Company
Address
for Notice:
Pol
Ind,
Xxxxx X, x0
Xxxxxxx
0X
00000
Xxxxxxx Xxxx (Xxxxxxx)
Xxxxx
Tel:
xx00
000000000 x000
2,547,126
Number
of
shares of Common Stock
None
Number
of
shares of Common Stock underlying subject to warrants, options, debentures
or
other convertible securities
-
6 -
LETTER
AGREEMENT SIGNATURE PAGE
“Insiders”
(continued)
XXXX
OSTIZ
_________________________
Signature
Xxxx
Ostiz
Print
Name
Employee
of Premier Power, S.L.
Position
in Company
Address
for Notice:
Pol
Ind,
Xxxxx X, x0
Xxxxxxx
0X
00000
Xxxxxxx Xxxx (Xxxxxxx)
Xxxxx
Tel:
xx00
000000000
512,173
Number
of
shares of Common Stock
None
Number
of
shares of Common Stock underlying subject to warrants, options, debentures
or
other convertible securities
-
7 -
LETTER
AGREEMENT SIGNATURE PAGE
Genesis
Capital Advisors, LLC:
Signature
By:
__________________________
Name:
Xxxxxxx Xxxxxxxx
Title:
Managing Member
Address
for Notice:
00000
Xxxxxxx Xxxx.
Xxxxx
0000
Xxxxxx,
XX 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
1,580,598
Number
of
shares of Common Stock
None
Number
of
shares of Common Stock underlying subject to warrants, options, debentures
or
other convertible securities
-
8 -
LETTER
AGREEMENT SIGNATURE PAGE
By
signing below, the Company agrees to enforce the restrictions on transfer set
forth in this Letter Agreement.
By:
_________________________________
Name:
Xxxx Xxxxx
Title:
Chief Executive Officer
Acknowledged
and agreed to
as
of the
date set forth above:
Computershare
Trust Company, N.A.
By:
________________________________
Name:
Title:
-
9
-
